Communicating with a Represented Person

Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation without the consent of the person’s lawyer. Generally, the rule does not prohibit represented persons from direct communication.

So, imagine this scenario:

Attorney self-represents in a divorce;

Lawyer represents Spouse.

Can Attorney communicate about the divorce with Spouse absent Lawyer’s consent?

In the post, I referred to this advisory opinion from the New York State Bar Association. The opinion suggests that a more prudent course of action is for a lawyer to send the e-mail to opposing counsel, then forward it to the client from the lawyer’s “sent” items.

Several readers suggested that a “bcc” to the client is simpler and avoids any concerns about opposing counsel replying directly to the client.

Maybe.

A “bcc” to the client certainly prevents opposing counsel from concluding that you, the sender, have consented to opposing counsel having direct contact with your client. But, do you know what happens if the blind-copied client uses “reply-all?”

I’ve tested this twice. Once at CLE in Rutland, and again yesterday with two co-workers. Each time, we “proved” the result. Still, I suspect many of you will run the test yourselves.

I work with Deb and Brandy. For purposes of the test, pretend that I represent Brandy and that Deb is opposing counsel. Yesterday, I sent an e-mail to Deb and blind copied Brandy. In other words, I sent an e-mail to opposing counsel and blind copied my client.

I asked each to try to “reply-all.”

Deb’s reply went only to me, not to Brandy, my client. Indeed, when Deb clicked “reply-all,” the only address that appeared in the window was mine. So, yes, the bcc to my client prevented opposing counsel from replying to my client.

My client was another story.

Brandy replied to all. By “all”, her reply went to me AND to Deb. That’s right: even though Brandy had been bcc’ed on my email to Deb, Brandy was able to “reply-all” to me and to Deb.

Now, I know lawyers love blanket statements. I’m not making one. That is, I am not saying “a lawyer violates the Rules of Professional Conduct by blind copying a client on an e-mail to opposing counsel.” Here’s what I’m saying: it’s not the magic bullet you might think it is.

Let’s say that my e-mail to Deb indicated that Brandy would settle a civil claim for $100,000, but nothing less. Imagine that Brandy, intending to reply only to me, accidentally used “reply-all” to write “Awesome! Do you think it will work? Even if it doesn’t, no big deal. I’ve said all along that I’d take $33,000 in a heart beat. By the way, what happens if they find out I was texting when it happened?”

I can hear you now. “Mike, what are the odds?” Well, here’s an excerpt from the NYSBA advisory opinion:

“12. Although sending the client a ‘bcc:’ may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.” For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits ‘reply all’ when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6. See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without ‘tak[ing] careful note of the list of addressees to which he directed his reply’).”

So, yes: a bcc to a client eliminates the risk that opposing counsel will conclude that you’ve consented to opposing counsel communicating directly with your client. However, it does not eliminate the risk that your client accidentally discloses confidential and privileged information in a “reply-all.” Indeed, per the Massachusetts case, it creates a “foreseeable risk” that the client will do exactly that. The opinion is HERE.

If you bcc a client on an e-mail to opposing counsel, make sure the client understands that “reply-all” will not be for your eyes only.

The creative juices have run dry this week. So, in a blatant ripoff of a now passe Facebook phenomenon, I’m posting a Throwback Thursday column. Today, we go back to 1990.

Things were a lot different in 1990. When the year began, Nelson Mandela was still in prison, the Berlin Wall was still standing, and Roger Clemens still played for the Red Sox & had yet to do this.

In legal ethics, the old Professional Conduct Board (“PCB”) issued its very first decision in August of 1990. Also that month, Vermont’s future bar counsel, who would eventually harp incessantly on tech competence, left for law school armed with a typewriter. He wouldn’t buy his first computer until he was a 2L.

Oh, and he had hair:

Now, before we move on, timeout for a quick history lesson:

In 1990, the PCB came into existence. Before then, there was no conduct board. The Supreme Court had original jurisdiction over lawyer discipline cases.

The PCB was replaced by the Professional Responsibility Board in 1999

The PCB heard cases; the PRB does not.

In 1990, the Code of Professional Responsibility (and its DR’s and Ethical Considerations) applied.

The Code was replaced by the Rules of Professional Conduct in 1999.

So, in 1990, the PCB issued its very first decision. It’s here. Here’s what happened:

Respondent represented Buyer in a real estate transaction.

Respondent failed to discover that Third Party had an option to purchase the property from seller.

Buyer eventually had to pay Third Party to relinquish the option.

Through Counsel, Buyer threatened to sue Respondent.

Respondent’s carrier advised him to settle.

Respondent, without Counsel’s permission, wrote directly to Buyer asking Buyer not to sue.

Counsel filed an ethics complaint against Respondent.

The PCB admonished Respondent for violating DR 7-104(A), the rule that prohibited lawyers from communicating with a represented person on the subject matter of the representation.

Under the Code, Ethical Consideration 7-18 made it clear that DR 7-104 applied to a lawyer who was a party to a matter, whether appearing pro se or represented by counsel.

I wonder whether the conduct at issue in the PCB’s first reported decision remains a violation today.

Today, Respondent’s conduct would be analyzed under Rule 4.2. The rule says:

“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do by law or a court order.”

Returning to the facts of PCB 1, it seems clear that Respondent’s conduct would violate Rule 4.2, right?

Loyal readers know my answer . . .

As I mentioned above, EC 7-18 made it clear that DR 7-104 applied to lawyers who represented themselves. The comments to Rule 4.2 do not include such clarity. Indeed, Comment [4] states:

“[p]arties to a matter may communicate directly with each other and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” (emphasis added).

The language in EC 7-18 was not carried forward in the new rules.

So, which applies to lawyers who represent themselves? The rule’s plain language? Or, the comment?

Most jurisdictions take the position that Rule 4.2 applies to lawyers. In particular, the majority view is that a lawyer who is self-represented is “representing a client” and, thus, is subject to the rule. For an excellent analysis of the majority position, see this opinion from the Washington Supreme Court.

However, there’s another view, with a twist.

In Pinsky v. Statewide Grievance Comm’n, the Connecticut Supreme Court considered a case in which a lawyer had been sanctioned for violating Rule 4.2. The lawyer (Pinsky) was involved in a dispute with his landlord. Both Pinsky and landlord had counsel. Pinsky communicated directly with landlord without permission from landlord’s counsel.

The Connecticut Supreme Court concluded that Pinsky had not violated the no-contact rule. The court focused on the fact Pinsky had counsel and, therefore, was not representing a client when he contacted landlord. Pinsky v. Statewide Grievance Comm’n, 578 A.2d 1075 (Conn. 1990).

The facts in PCB 1 are not square with Pinsky in that Pinsky had a lawyer, while the respondent in PCB 1 did not. Still, it would seem odd to sanction Respondent for doing something that, under Pinsky, he’d have been authorized to do if he had only hired himself a lawyer.

Personally, I ascribe to the view that the New York State Bar Association expressed in Ethics Opinion 879. In the opinion, which was issued in 2011, the NYSBA concluded that all lawyers “whether they are pro se parties or represented parties or representatives of other parties in a matter” are subject to Rule 4.2.

That being said, I’m cognizant of the fact that Comment 4 to Vermont’s rule indicates that parties may always communicate with each other. Further, I struggle to square my position with practical realities. For instance, if a lawyer is self-represented in a divorce, must the lawyer go through spouse’s counsel on every little issue that arises before a final hearing?

So, there you have it. In our first throw back, I think that the conduct that resulted in PCB 1 might implicate the rules today. That being said, if the complaint alleging the exact same conduct were filed today, I’d give strong consideration to referring it for non-disciplinary dispute resolution as opposed to referring it for a disciplinary investigation.

Several entrants came within a whisker of a perfect score, with many of you getting 4.5 as a result of knowing the show but not the client. Only Elizabeth Kruska, my fellow VBA Board member, went 5 for 5.

Last month, the State Bar of Texas issued an advisory ethics opinion that was heavy on terms like “SEO” and “competitive keywords.” What legal ethics topic did the opinion address?

A. Internet advertising & marketing. Good thing most of you got this one right on Friday, seeing as I’d blogged about it on Thursday.

B. Online legal research

C. Diligence/Competence in Patent & Trademark Law

D. Self Employed Operators of title companies

Question 2

In July, the South Carolina Bar issued an advisory ethics opinion that has stirred national debate (and controversy). The debate includes attorney regulators, bar associations, and companies like Avvo. It might soon include a federal court or the Federal Trade Commission. The debate centers on:

A. Advising Clients on Marijuana-Related Issues

B. Attorney Advertising & Sharing Fees with Non-Lawyers. I’m going to blog on this issue later this week. For now, check out this post from the ABA Joural.

C. Banking Regulations & Trust Accounting Standards

D. Multi-Jurisdictional Practice of Law

Question 3

Lawyer called me with an inquiry. I listened, then responded: “A lot of lawyers do the same thing. It’s not quite that simple. I’ll tell you what I tell everyone: if down the road you decide to withdraw, don’t forget that you’ll have a former client on your hands, which will raise issues you’ll have to consider.”

What general ethics topic did Lawyer call to discuss?

Conflicts. Specifically, representing multiple clients with a plan to withdraw from representing one if a conflict arises. Not always the best plan. The reason is that Rule 1.9 prohibits an attorney from representing a person in a matter when the person’s interests are materially adverse to those of a former client. Committing to multiple representations, then withdrawing when interests become adverse, often leaves a lawyer with a former client whose interests are adverse to the client with whom the lawyer stayed.

Question 4

Attorney called me with an inquiry. I listened, then responded: “The Comment says that former employees are fair game.”

What general ethics topic did Attorney call to discuss?

Communicating with the former employees of a represented organization on the subject matter of the representation. See, Rule 4.2, Comment 7.

Question 5

Leonard Kachinsky is a real-life attorney in Wisconsin. Earlier this year, he gained national attention after binge watchers everywhere learned that he had engaged in some, umm, questionable conduct while he represented a client in a criminal case. This week, he was back in the news: a federal judge overturned the conviction of Kachinsky’s client.

The judge cited coercive interrogation techniques as the basis for overturning the conviction. However, he also noted that Kachinsky’s representation of his (then) teen-aged client had been “inexcusable, both tactically and ethically.”